Editor’s Note: In this weekly column “Cross-Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer reader questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
Now that the dust has settled after two weeks of riveting impeachment hearings on Capitol Hill, the primary lines of argument have emerged.
In one corner, President Donald Trump and his supporters point to his September 9 conversation with EU Ambassador Gordon Sondland, during which (according to Sondland) Trump said, “I want nothing. I want no quid pro quo.”
In the other corner, we have testimony from multiple ambassadors and National Security Council officials that suggests Trump indeed conditioned foreign aid and a White House visit on Ukraine’s announcement of investigations into Trump’s political rivals.
But the fact that both sides have a line of argument does not mean those arguments are persuasively equal or cancel one another out. The vast weight of the evidence – supported by logic and common sense – indicates Trump wanted a quid pro quo. And upon scrutiny, Trump’s self-serving denial carries little persuasive or evidentiary weight, and provides a flimsy shield for Trump and his supporters to hide behind.
The “I want nothing” defense – no matter how many times or how loudly Trump shouts it – is a cheap distraction and should not divert attention from the actual evidence of his corrupt intent.
The timing of Trump’s “I want nothing” comments is crucial to this point. Trump’s September 9 conversation with Sondland happened nearly a month after the whistleblower filed a complaint, several days after the White House learned about the complaint, and on the same day Congress received notice of the complaint. As House Intelligence Committee Chair Adam Schiff put it, “he got caught.” The jig was up, and Trump was in cover-up mode.
Both the law and common sense tell us that a self-serving denial made after a person has been caught carries limited if any value. Criminal defendants generally are not allowed to offer evidence at trial of their own self-serving, after-the fact denials of guilt (indeed, every criminal defendant who goes to trial already has proclaimed his lack of culpability by pleading not guilty).
Impeachment, of course, is not a criminal proceeding, and the rules of evidence do not apply. But it is telling that our established legal rules likely would deem Trump’s self-serving denial too unreliable to use in court. The logic is so plain that even a child can understand it: once you’ve been caught with your hand in the cookie jar, it doesn’t make you innocent to announce, “I want no cookies!”
Trump’s “I want nothing” defense also is crushed by the sheer weight of the evidence to the contrary. Boiled down, that evidence establishes two facts that even the most ardent Trump supporter cannot credibly contest: (1) Trump held up foreign aid to Ukraine and a potential White House visit, and (2) Trump asked Ukraine to investigate his political rivals. The big question, then, is whether (1) and (2) are related: were the foreign aid and White House visit held up in order to get the investigations, or was it just a cosmically unlikely coincidence that both of these things happened, independent and unconnected to one another?
Common sense alone answers the question, but if that wasn’t enough, witness after witness testified that the foreign aid and White House visit were indeed connected to the investigations. Acting Ambassador to Ukraine Bill Taylor testified that “by mid-July it was becoming clear to me that the meeting President Zelensky wanted was conditioned on the investigations of Burisma and alleged Ukrainian interference in the 2016 US elections.”
Lt. Col. Alex Vindman, who listened to the July 25 call in his capacity on the National Security Council, described “a demand for him [Zelensky] to fulfill his—fulfill this particular prerequisite in order to get the meeting.”
Even Ambassador Sondland, central to Trump’s September 9 defense, acknowledged that he directly proposed a conditional exchange to a key Ukrainian adviser, and Ambassador Kurt Volker, the former Special Representative for Ukraine negotiations, explicitly offered a similar this-for-that exchange in a text message to the same adviser.
White House acting chief of staff Mick Mulvaney admitted publicly there was a quid pro quo (though he later walked it back). And, upon any sensible reading, Trump himself directly proposed a conditional exchange in his July 25 call with Zelensky, according to the White House’s own transcript of the call: “I would like you to do us a favor though…”
Do not be distracted by the “I want nothing!” defense. It has a certain simple, visceral appeal, and provides a convenient bumper-sticker slogan for Trump and his defenders. But it cannot stand up to the facts or common sense.
Now, your questions
Tony (Kansas): The evidence shows that Trump and Giuliani didn’t care about an actual investigation of the Bidens and 2016, but only a public announcement of an investigation. How does that affect the case for impeachment?
Testimony from Lt. Col. Vindman, Ambassador Sondland, and National Security Council official Tim Morrison – and other evidence including text messages between US and Ukraine officials – establishes that the “deliverable” Trump and Giuliani sought from Ukraine was not necessarily an actual criminal investigation of the Bidens but rather a public announcement of the investigation.
This detail is compelling circumstantial evidence of the state of mind of Trump and Giuliani. Their primary focus on a public announcement indicates that their true motive was political – ensuring the public knew Biden was under criminal investigation – rather than corruption-busting.
Indeed, as Giuliani surely knows, as a longtime prosecutor, there is good reason why good prosecutors conduct investigations almost entirely in secret: a public announcement of an ongoing investigation would tip off the targets and potential witnesses, and would seriously undermine fact-finding. The last thing any prosecutor – or any person genuinely interested in fighting corruption – would do is to insist on a public announcement of a corruption investigation.
Jason (North Dakota): Now that the evidence in the Roger Stone trial has proved that Trump knew about the leaked emails Wikileaks dumped, could Trump be charged once he is out of office for lying on his written answers to Robert Mueller?
Stone was convicted by a jury on all seven charges brought against him, including one count of lying to Congress for “testif[ying] falsely that he had never discussed his conversations” about the Wikileaks e-mail dump “with anyone involved in the Trump campaign.” The evidence at trial, including phone call logs and testimony, established that Stone in fact discussed the Wikileaks email dump directly with Trump and other campaign officials including Steve Bannon.
But in his written answers to Mueller, Trump claimed he “do[es] not recall discussing Wikileaks” with Stone, “nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign.”
There are only two possibilities: either Trump actually did not recall these conversations, or he lied in his responses to Mueller. While it seems highly unlikely that Trump forgot about conversations with a longtime adviser about a potentially crucial development in the presidential campaign – especially given Trump’s claim to have “one of the great memories of all time” – it would be difficult for a prosecutor to prove beyond a reasonable doubt that Trump did not in fact forget.
It shouldn’t be that easy to evade criminal liability, but sometimes “I do not recall” can be an effective legal cover. Robert Mueller bears some blame here; by accepting written responses from Trump rather than fighting for an in-person interview or grand jury testimony, Mueller left the door wide open for this facile dodge by Trump and his attorneys.
Tony (Oklahoma): How does the burden of proof in an impeachment trial compare to that of both a criminal trial and a civil trial, and is hearsay testimony allowed in an impeachment trial?
In a criminal case, the prosecutor must prove a defendant’s guilt “beyond a reasonable doubt,” which is the highest standard of proof in our legal system. In a civil trial, the plaintiff must prove the case by a “preponderance of the evidence,” meaning proof that the allegations are more likely true than not true.
Article I of the Constitution broadly gives the Senate the “sole power to try all impeachments.” But the Constitution does not specify any particular standard of proof necessary for conviction.
In the 1999 Senate impeachment trial of President Bill Clinton, Clinton’s lawyers made a motion to apply the criminal “beyond a reasonable doubt” standard, but those motions failed. So no particular standard of proof applies at all – or, more precisely, each Senator can apply whatever standard of proof he or she feels appropriate.
Three questions to watch
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2. Now that a federal judge has ruled that former White House counsel Don McGahn must testify (which the White House surely will appeal), will the House Judiciary Committee call him as a witness and seek to include his information in an Article of Impeachment?
3. How will proposed Articles of Impeachment take shape in the House Judiciary Committee?